Bimal Chandra Basak, J.:— This application under Art. 226 of the Constitution of India is directed against an order passed by the State of West Bengal on the 31st December, 1976 whereby Dr. B. Halder, the respondent No. 7 herein, was appointed as Principal, Professor and Head of the Department of Obstetrics and Gynecology (hereinafter referred to as the Department) of Calcutta National Medical College and Hospital (hereinafter referred to as the said Institution) for a period of six months with effect from the date of his joining.

2. The facts of this case are as follows: The petitioner is an Obstetrician and Gynaecologist and was employed as Medical Officer in the said institution. Similarly the respondent No. 7, Dr. Halder was also employed as Medical Officer of the said institution. By virtue of the Calcutta National Medical College and Hospital Act, 1967 (hereinafter referred to as the 1967 Act), with effect from 9th June, 1967, for a period of 10 years, the said institution was transferred to the State Government and it was to remain under the control and management of the State Government. Under S. 6 of the 1967 Act the State Government was empowered to make Rules for carrying out the purpose of the 1967 Act and particularly for the management of the institution and the terms and conditions of service of persons employed in the institution. In October 1967 Dr. Haldar became the Head of the said Department. Thereafter the Calcutta National Medical College and Hospital (Terms and Conditions of Service) Rules 1967 (hereinafter referred to as the 1967 Rules) were promulgated which came into effect from 13th of February 1968. On the 26th May 1976 the Calcutta National Medical College and Hospital (Amendment) Act 1976 (hereinafter referred to 1976 Act) received the assent of the President of India. By the said Act, amongst, others, a new Section, namely, S. 3-A, was inserted in 1967 Act which enabled the State Government to acquire the said institution by a notification published in the Official gazette. With effect from 31st May 1976 Dr. Halder retired upon attaining the age of superannuation. By an order dated 31st May 1976 the Principal of the said institution directed the petitioner to take over charge of the said Department temporarily and until further order was received from the Government as Head of the said Department. By virtue of a notification dated 13th of Sept., 1976, issued under the amended S. 3-A referred to above, the said institution stood transferred to and became vested absolutely in the State Government free from all encumbrances. On the 31st Dec., 1976 the impugned order was passed whereby Dr. Halder was appointed as Principal and Professor and Head of the said Department of the said institution.

3. Being aggrieved by the said order dated 31st Dec. 1976, the petitioner moved this Court under Art. 226 of the Constitution of India praying, amongst others, writ in the nature of Quowarranto and Mandamus. Upon the said writ petition being moved, on the 6th Jan. 1977 Masud J. issued a rule Nisi as prayed for and also passed an ad interim order to the following effect.

“And it is further ordered that the said respondent Dr. B. Halder is restrained from taking charge as Head of the Department of Obstetrics and Gynaecology Calcutta National Medical College, Calcutta pending the disposal of the application. And it is further ordered that the respondents above named be at liberty to vacate or modify the order made herein on notice to the said petitioner. And it is further ordered that this order shall not prevent the said Dr. Halder from acting as the Principal of the said College until further orders of this Court. And it is further ordered that all parties concerned do act on a copy of the minutes of this order signed by an officer of this court being served upon them.”

4. Various troubles arose thereafter. According to the petitioner he was on leave at the relevant time and he resumed his duties on 7th Jan. 1977 as Professor and Head of the said Department. On the other hand it was the contention of the respondents that Dr. Halder had taken over charge pursuant to the impugned order before the Rule Nisi was issued and the ad interim order was passed by this Court. On the 7th Jan. 1977 this matter was mentioned before Masud J. on behalf of Dr. Halder, when a statement was made by the learned counsel appearing for Dr. Halder to the effect that Dr. Halder had already assumed charge as Principal and Head of the said department of the said institution. Statement was also made on behalf of the petitioner to the effect that the petitioner had resumed his duties as Professor and Head of the said Department on 7th Jan. 1977 and he has been discharging his duties as such. Both the petitioner and Dr. Halder sought to exercise power and authority as Head of the Department and they started and/or continued to issue letters/circulars accordingly. On the 14th Jan. 1977 a notice of motion was taken out on behalf of Dr. Halder for vacating the aforesaid ad interim order. On the 17th Jan. the said application appeared in the list of Masud, J., but it was not called in course of that day. On 18th Jan. 1977 the said application appeared in the list of Ajoy Kumar Basu, J. as “Motion (New)”. On behalf of the petitioner herein, who was opposing such application, directions were sought for filing affidavits. On behalf of Dr. Halder prayer was made for interim order and accordingly submissions wore made on behalf of the respective parties. After hearing the parties, the learned Judge passed an order to the following effect.

“On the statement of Dr. Halder that Dr. Halder has taken charge of the Obstetrics and Gynaecology Department of the National Medical College and also as Principal from 4th Jan. 1977 and without prejudice to the rights and contentions of all the parties. I make thin interim order restraining Dr. Banerjee from interfering with the work of Dr. Halder as Head of the Department of Obstetrics and Gynaecology till the disposal of application. Prayer for stay of this order made by Mr. Chakravorty is refused. A/O. by 28-1-77, A/R by 31-1-77 adjourned till 1-2-77. All parties to act on a signed copy of the minutes.”

5. Being aggrieved by the said order the petitioner preferred an appeal and made an application for stay of the said interim order. The application for stay was heard by us for sometime. An appeal was also preferred by the petitioner in the main Writ petition against the order of Masud J., so far as the said order permitted Dr. Halder to continue to function as Principal. An application was also made in that appeal for an interim order. In the petitions and affidavits filed in the applications, various allegations and counter-allegations were made by the parties against each other. They were not confined to the petitioner or Dr. Halder alone but other Medical Officers of the said Institution became involved. Other Medical Officers and House Surgeons also joined the “group” of the petitioner or Dr. Halder. It all arose on the question as to whether Dr. Halder had taken over charge before the Rule was issued and the ad interim order was pissed by Masud, J. This had nothing to do with the merits of the writ petition. All these allegations and counter-allegation which ware unfortunately made involving Medical Officers of a public institution like a Medical College and hospital were detrimental not only to the interest of the Medical Officers of the Institution and the institution itself as such but also to the members of the public. The atmosphere prevailing in the Hospital was not healthy, to say the least.

6. It appeared that if this situation was allowed to continue the interest of not only the parties and of the Medical Officers but also of the students and patients of the said institution would certainly suffer. For this reason it was felt and appreciated that instead of going into the various allegations made in the applications which were pending before us, it would be desirable and advisable to have the petition itself dispose of. The matter was mentioned before the learned Chief Justice who specially assigned the main writ matter to this Bench for hearing at the request of the parties, as the applications were pending before us. It may be pointed out in this context that in view of the existing Rules of this Court in respect of applications under Art. 226 of the Constitution, we could not have heard the main writ petition without such assignment.

7. Mr. Somnath Chatterjt, Learned Counsel appearing in support of the Rule, has challenged the impugned order on various grounds. Firstly he has submitted that in the return filed in answer to the Rule, the respondents have disclosed the purported source of the power to make such appointment which he described to be erroneous. He has placed before us the affidavits of the respondents wherein it has been stated that such appointment has been made under consultation with Public Service Commission Regulations 1955 (hereinafter referred to as the 1955 Regulations) framed under Art. 320 of the Constitution. He has submitted that 1955 Regulations do not confer any power on the State Government to make any such appointment. He has submitted that on this ground alone the Rule must be made absolute.

8. Mr. Chatterjee has submitted that in any event this appointment is illegal, having regard to the relevant Rules applicable in the matter. In this connection he has referred to the 1967 Rules. He has submitted that the admitted position is that Dr. Halder did not opt for the terms and conditions of service applicable to the Government employee as provided in Part II in accordance with R. 3 of the said Rules and accordingly he is governed by the terms and conditions of service laid down in Part III of the said Rules. Rule 31 which is one of the Rules included in Part III, relates to superannuation. This Rule provides as follows:—

“31. All employees treated as permanent employees under the terms in force immediately before the appointed day shall compulsorily retire from service on the attainment of the age of 60 years. Others not treated as permanent shall continue on temporary basis till the expiry of their present term of appointment, if any. Any such officer may, however be further retained in service on a tenure basis at the discretion of Government subject to such terms and conditions as may be laid down by Government provided, however, that persons completing three years of continuous temporary service against permanent vacancy to the satisfaction of Government, may, after consideration of merit in each case, be confirmed as permanent for the purpose of these rules”.

9. Mr. Chatterjee has submitted that the scope of this Rule is that all employees governed by the Part III of the said Rules are to retire on attaining the age of 60 years. Admittedly Dr. Halder attained the age of 60 years on 31st May 1976 and he had retired. According to Mr. Chatterjee, this rule creates a bar to appointment of any person who was such an employee and who was more than 60 years of age. So far as third sentence of this Rule is concerned. Mr. Chatterjee submitted that this was of no assistance to Dr. Halder. He has submitted that “any, such officer” in the context means those who are not treated as permanent, that is, those referred to in the second sentence of the said Rule. In any event he submitted that the third sentence only applies in the case of a retention of service. In the present case such appointment was not made on the retirement of Dr. Halder on 31st of May, 1976. He was appointed six months thereafter. Accordingly Mr. Chatterjee contended that in view of Rule 31 there is a bar to any such appointment of any person beyond the age of 60 years.

10. Next Mr. Chatterjee referred to Rule 20 of West Bengal Health Service (Cadre, Pay and allowance Rules) 1958 (hereinafter referred to as 1958 Rules) and R. 75 of West Bengal Service Rules 1948 Part I (hereinafter referred to as WBSR) which provide for age of superannuation. The age prescribed there under at the relevant time was 58.

11. Mr. Chatterjee submitted that the aforesaid Rules not only provide for the age of superannuation but it is also a bar of appointment of any person whose age is, at the relevant time, beyond such age.

12. Next Mr. Chatterjee referred to Rule 79-A of WBSR which deals with re-employment of Government Servants which was referred to by the Counsel for the respondents during the arguments of Mr. Chatterjee. Mr. Chatterjee submitted that the R. 79-A had no application in the facts of this case. He submitted that the expression “attaining the age of superannuation” referred to therein means a person who was a Government Servant at the time of attainment of such age. He submitted that this was made very clear by the expression “under the Central or State Government” in the later part of the Rule. He has submitted that Dr. Halder did not hold any position under the State Government when he retired in May, 1976. Dr. Halder retried before the acquisition, that is, the vesting of the said institution in the Government. He retired when the institution was only under the management of the Government. Accordingly Dr. Halder was never an employee of the State. Accordingly he submitted R. 79-A does not assist the respondents.

13. In support of aforesaid contentions, Mr. Chatterjee has made certain general submissions and relied on certain decisions. He has submitted that it cannot be said that this appointment has been made in exercise of the inherent or executive power of the Government. Executive power cannot be exercised in a manner which is inconsistent with any Rules. Further when the Government has acted under a particular Rule it cannot fall back upon an executive power. He has further submitted that in exercise of the executive power, an order cannot be passed which will cause prejudice to a citizen. He has further submitted that executive power cannot be applied to meet an ad hoc situation.

14. In support of his contentions Mr. Chatterjse relied on the following decisions. State of A.P v. Lavu Narendra Nath, (1971) 1 SCC 607 : AIR 1971 SC 2560 (Para 15), University of Mysore v. Govinda Rao, AIR 1965 SC 491, R.N Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 (Paras 26 and 28), State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170 (Paras 5 and 6), K.N Guruswamy v. State of Mysore, AIR 1954 SC 592 at page 595 (Para 19).

15. Mr. J.N Roy, learned counsel appearing on behalf of Dr. Halder referred to Rules 32 and 33 of the 1967 Rules and submitted that by virtue of R. 33 of 1967 Rules, other Rules applicable to the Government servants became applicable to an employee of the said institution. Mr. Roy did not contend before us that merely by virtue of taking over the management of that said institution, the persons employed therein became Government employees. But with reference to the Act and the said Rules he submitted that Dr. Halder was in the position of a State Government employee and all the Rules applicable to State Government employees were applicable to his client. According to Mr. Roy this would include Rule 79-A of WBSR, Mr. Roy also drew our attention to Rule 2 of WBSR and submitted that in view of the fact that the management of the said institution was taken over by 1967 Act, and that it has to be run as a State Institution, the State Government was competent to prescribe the conditions of service of the employees of the said institution within meaning of Rule 2 of WBSR and accordingly all the provisions of the WBSR including Rule 79-4 would apply to such employees including Or. Halder. In this context Mr. Roy also drew our attention to the provisions of West Bengal Health Service (Cadre, Pay and Allowance) Rules, 1958 and particularly R. 26 thereof. Mr. Roy also drew our attention to para 3 of S. III of chapter II of the Health Manual (Page 218) which provides that the policy of re-employment of Medical Officers of West Bengal Health Service both Gazetted and non-Gazetted, beyond the age of Superannuation viz., 58 years was laid down in Government Order No. Estt/7012//Admn/IP-69/66 PTI dated 21st December 1967 read with Government order No. Estt/3908/9P-2/68 dated 30th April 1968. In this connection he drew our attention to the Government Orders dated 21st of December 1967 and the 30th of April 1968 respectively and relied upon paragraph 2 of the last mentioned Government order.

16. Accordingly Mr. Roy submitted that whether by virtue of Rule 79-A of WBSR or para 2 of the aforesaid 1968 Government order, the order of appointment in favour of his client was valid and proper.

17. Mr. S.B Mukherjee appearing on behalf of the State stated before us that original record relating to this appointment was missing and produced before us what he described to be the “re-constructed” file relating to the cabinet, decision regarding this appointment. Mr. Mukherjee submitted that R. 31 of the 1967 Rules had no application in the facts of this case, Mr. Mukherjee relied on Rule 79-A of WBSR in support of the validity of the appointment in favour of Dr. Haldar. In any event, Mr. Mukherjee submitted, even if the order was not strictly in compliance with Rule 79-A by virtue of R. 3-A of WBSR such appointment is valid. In any event, he submitted, the Government was authorised to pass this order in exercise of its inherent power.

18. Mr. Som Nath Chatterjee in his reply commented upon and criticised the stand taken by the Government in this case. He submitted that the notings in the file do not show how the objection of Finance Department, as recorded therein was to be avoided or met. He placed before us the affidavit-in-opposition affirmed on behalf of the Government and particularly paragraph 8 thereof which refers to R. 18 of 1958 Rules. He pointed out that R. 18 refers to initial recruitment to any such post. Rule 17-A of the said Rules provides that a candidate for recruitment to the West Bengal Health Service shall not be more than 28 years of age which is relaxable upto 35 years for candidate possessing post-graduate qualification or otherwise well qualified and experienced. He further submitted that after the vesting in 1976, the 1967 Rules had no further application. According to him 1967 Rules are being continued by virtue of S. 3A of the said Act as amended. Only in respect of persons who were in the employment before the date of vesting. With regard to R. 33 of 1967 Rules and Rule 79-A of WBSR he submitted that in any event there is nothing to show that it was an analogous post. He submitted that at the time of appointment in December 1967 Dr. Halder was not a Medical Officer because he had retired long ago. Rule 33 of 1967 Rules according to him, only governed his right as long as be was employed in the said institution. Regarding Rule 79-A, Mr. Chatterjee drew our attention to the marginal note of the said Rule which mentions “He-employment of Government servant”. Mr. Chowdhury also submitted that no case has been made out in the affidavit-in-opposition affirmed on behalf of the State that this was done by virtue of Rule 79-A. He also submitted that Rule 79-A is only confined to the cases where the person concerned held posts under Central Government or State Government. Further the post held earlier must not be a post inferior to the post in which he is sought to be appointed. Regarding R. 2 of WBSR Mr. Chatterjee submitted that the said Rule relates to Government servant and it applies only to those persons who are at the relevant time holding posts under the State Government. With regard to the expression “whose condition of service the Government of West Bengal are competent to prescribe” used in Rule 2 of WBSR, Mr. Chatterjee submitted that they must refer to Government servants as such and that it does not extend to those persons in respect of whom the Government can by virtue of its legislative power under the 7th Schedule to the Constitution, make any provision.

19. In our opinion Mr. Chatterjee is right in his contention that the reliance placed on the 1955 Regulations by the respondent in their affidavit as a source of the power of appointment in respect of the impugned order, is totally misconceived. These regulations have been framed under the Proviso to Art. 320(3) of the Constitution. Art. 320 specifies the functions of the Union or State Public Service Commissions. Cl. (3) of this Article provides that the Union Public Service Commission or the State Public Service Commission as the case may be, shall be consulted on certain matters specified therein. The proviso specifies, inter alia; that the Governor may make Regulations specifying the matters in which it shall not be necessary to consult the State Public Service Commission. The 1955 Regulations have been framed for these reasons only. These Regulations merely provide that under certain circumstances consultation with the State Public Service Commission was not necessary. They cannot and do not confer any power to make any appointment. These Regulations cannot be treated as a source of power to make such appointment.

20. However we are not in a position to accept the contention of Mr. Chatterjee that on this ground alone the Rule must be made absolute. Even if a wrong Rule or provision of an Act has been relied upon, it may be open to the respondents to justify their action on the basis of some other Rule or provision which confers such power provided the necessary materials are before the Court. We, therefore, shall consider all the contentions on merits.

21. By the 1967 Act, with effect from 9th June, 1967 and for a period of 10 years thereafter, the said institution together with various properties and assets of the said institution, stood transferred to the State Government and it was to remain under the control and management of the State Government. All persons connected with the management of the Institution immediately before the appointed day were to be deemed to have vacated their offices. The said institution was to be run by the State Government as a State Institution. Under S. 6 thereof the State Government was authorised to make Rules for carrying out the purposes of the Act including Rules to provide for the terms and conditions of service of persons employed in the institution. It was further provided that until such Rules are made persons employed in the said Institution would continue to remain under the terms and conditions of service in force immediately before the taking over of the management.

22. The intention of 1967 Act as it then stood was to take over the management of the said institution alone and it did not originally make any provision for acquisition of the said Institution. The employees employed therein at the time of such take-over, remained as employees of the said Institution, They did not automatically become employees of the Statemerely because of taking over of management. If the management of an institution is taken over by the Government, the employees of such institution continue to remain employees of such institution and they do not become the employees of the Government concerned only because the management has been taken over. In this context reference may be made to a decision of the Division Bench of Madhya Pradesh High Court in the case of Life Insurance Corporation of India v. Thakur Mohan Singh, (1974) 1 SLR 558. This will also be clear from the 1976 Amending Act whereby provisions were introduced in the 1967 Act enabling the State Government to acquire the said Institution. S. 3A(2)(u) of the 1967 Act, as amended by 1976 Act, provides that every person who has been an employee of the said Institution before the date of vesting, shall on and from the date of vesting, become an employee of the State Government. S. 3(2)(vi) also mentions about transfer of services of the employees of the said Institution to the service of the State Government. These provisions make it clear that they were not employees of the State before such vesting.

23. Pursuant to the 1967 Act, the 1967 Rules were framed. Under Rule 2(b) of the said 1967 Rules, “Employee” means a person employed in the said Institution on the appointed date, that is, the date of taking over management. Under Rule 3(1) of the said Rules every employee was given the right to opt for the terms and conditions of service applicable to a Government employee holding a corresponding post or service, as provided in Part IT, the option being exerciseable in the manner and within the time specified therein. Under R. 3(3), any employee not opting for the terms and conditions of service laid down in Part II, was to be governed by the terms and conditions of service laid down in Part III. The admitted position is that neither Dr. Halder nor the petitioner exercised such option. Accordingly they continued to be governed by the terms and conditions of service laid down in Part III of the Rules which includes, inter alia, Rules 31, 32 and 33 which are set out herein-below:—

Superannuation

“31. All employees treated as permanent employees under the terms in force immediately before the appointed day shall compulsorily retire from service on the attainment of the age of 60 years. Others not treated as permanent shall continue on temporary basis till the expiry of their present terms of appointment, if any. Any such officer may, however be further retained in service on a tenure basis at the discretion of Government subject to such terms and conditions as may be laid down by Government provided, however, that persons completing three years of continuous temporary service against permanent vecancy to the satisfaction of Government may, after consideration of merit in each case, be confirmed as permanent for the purpose of these rules.

32. All employees in service before the appointed day who may be governed by this part shall, in the interest of public service or on, administrative grounds, be liable to be transferred to any other teaching institution in the Calcutta area, for a term not exceeding two years at a time.

Explanation—If a person is rendered surplus to requirements of the Department or unit in which he has been working or if be cannot be suitably fitted in the sanctioned set-up for the said Department or Unit, he may be offered an alternative appointment in some other teaching institution in Calcutta and such appointment shall be treated as transfer under this rule on administrative ground.

Discipline and Control

33. In respect of appointment, conduct, discipline, control and allied matters—

(i) the Medical Officers or other officers holding posts analogous to gazetted posts under the Government, to whom the provisions of this part may be applicable, shall be governed by the same rules and orders as are applicable to the incumbents of such gazetted posts,

(ii) all other employees holding posts analogous to non-gazetted appointments under the Health Department, to whom the provisions of this part may be applicable shall be governed by the same rules and orders as an applicable to the incumbents of such non-gazetted posts.”

24. Dr. Halder retired on the 31st of May, 1976 on his attaining the age of 60 years in view of R. 31 of the 1967 Rules. In our opinion Rule 31 cannot be invoked for the purpose of supporting the impugned order. This Rule provides for superannuation of the persons who were employed in the said Institution at the time of such taking over of management and who are governed by Part III of the 1967 Rules. It also provides for their retention under certain circumstances in spite of the attainment of the age of superannuation. This does not deal with the question of re-employment or fresh appointment of any such employee. The expression “retained” used in Rule 31 must be distinguished from the expression “re-employed” or “appointed”. In our opinion it clearly contemplates a case where irrespective of the fact of attainment of the age of superannuation instead of being retired, the employee concerned is continued in service and there is no break in service. Only in such a case R. 31 can be invoked. This does not contemplate a situation like the case before us where such an employee actually retired on his attaining the age of superannuation and thereafter and after some time he is sought to be employed in the said Institution. Accordingly in our opinion Rule 31 of the 1967 Rules does not support the validity of the impugned order.

25. Having regard to the conclusion we have arrived at as aforesaid, it is not necessary for us to decide whether the expression “Any such officer” referred to in the third sentence of R. 31, which empowers such retention, only refers to the non-permanent employees referred to in the second sentence of the said Rule (as sought to be contended by Mr. Chatterjee), or whether it also includes permanent employees as referred to in the first sentence of this Rule (as sought to be contended on behalf of the respondents).

26. Apart from R. 31 of the 1967 Rules, two fold submissions were made on behalf of the respondents to support the validity of the impugned order. One was on the basis of R. 79-A of WBSR and the other on basis of 1967 and 1968 Government order refered to above. We shall take up R. 79-A of WBSR first, which provides as follows:

“79-A. Notwithstanding anything contained in the foregoing rules or in any rules of requirement the State Government may re-employ or appoint any person on his attaining the age of superannuation or after he has attained such age to any post if before superannuation such person held a post, under the Central or any State Government not inferior to the post in which he is re-employed or to which be is appointed, provided that he shall not earn any pension for the period of such reemployment or appointment.”

27. Rule 79-A was sought to be invoked in the case of Dr. Halder by three alternative means. Firstly, it was submitted that having regard to R 33 of the 1967 Rules, quoted above. Rule 79-A of WBSR was attracted it was next submitted that by virtue of R. 2 WBSR itself, which is set out hereinbelow, R. 79-A was attracted.

“2. Subject to the provisions of the Constitution of India and except where it is otherwise expressed or implied, these rules apply to all members of services and holders of posts whose conditions of service the Government of West Bengal are competent to prescribe. Subject as aforesaid they also apply to—

(i) any person for whose appointment and conditions of employment special provision is made by or under law for the time being in fore;

(ii) any person in respect of whose service, pay and allowances or pension or any of them special provision has been made by any agreement made with him, in respect of any matter not covered by the provisions of such law or agreement”;

28. It was submitted that not only after but even before the acquisition of the Institution in Sept. 1976, the Government was by virtue of 1967 Act, competent to prescribe the conditions of service of the employees of the said institution within the meaning of R. 2 of WBSR. It was pointed out that under the 1967 Act the said Institution has to be run by the Government as a State Institution.

29. It was thirdly contended that by virtue of R. 26 of the West Bengal Health Service (Cadre, Pay and Allowance) Rules 1958 hereinafter referred to as 1958 Rules the provisions of the WBSR, which includes R. 79-A, would be applicable to employees of the said institution including Dr. Halder. R. 26 of 1958 Rules provides as follows:

“In respect of any matter in regard to which no provision has been made in these rules the provisions of the West Bengal Service Rules, the Civil Services (Classification, Control and Appeal) Rules and any other rules which are already in force or which may be made by the Government from time to time shall apply to the members of the West Bengal Health Service to the extent to which they are applicable to similar class of Government servants and the decision of Government as to their applicability shall be final.”

30. In the view that we have taken we do not consider it necessary to decide whether Rule 79-A can be invoked in support of the main order. Even if we assume that Rule 79-A is applicable in the case of Dr. Halder we shall still have to consider whether the impugned order, in so far as it relates to the appointment of Dr. Halder as the Principal of the said institution, can be supported by Rule 79-A. To apply the provisions of R. 79-A the requirements of the said Rule have to be complied with. No doubt. Rule 79-A provides that the same would apply notwithstanding any thing contained on other Rules or Orders. But there is nothing before us to show, that the conditions precedent to the exercise of the power under R. 79-A and the requirements of the said Rule have been satisfied. The affidavits affirmed on behalf of the respondents do not refer to Rule 79-A In support of the said impugned order. The records produced before us also do not support this contention. Further, this Rule provides, inter alia, that the post which the person concerned was holding at the time of his superannuation, must not be inferior to the post in which he is sought to be re-employed and/or appointed. There is nothing in the affidavit by the State or in the records produced before us to satisfy this test. On the other hand, records produced show that this was the very reason why Finance Department had objected to the appointment of Dr. Halder to the post of Principal. According to the Finance Department, the post of the Head of the Department which Dr. Halder held at the time of his retirement was inferior to the post of Principal to which he was sought to be appointed by the impugned order. It can not be doubted in our opinion that the post of the Principal is senior to the post of the Head of the Department which post was being held by Dr. Halder at the time of his retirement.

31. In that view of the matter it is not necessary for us to consider whether ??? virtue of R. 33 of 1967 Rules, or Rule 26 of the 1958 Rules, the provisions ??? WBSR Part I, (which includes Rule 79-A) are attracted to the case of a person in the position of Dr. Halder or not. It is also not necessary to decide whether Rule 2 of WBSR applies in the case of Dr. Halder. Assuming that by virtue of R. 2 of WBSR and/or R. 33 of the 1967 Rules and/or R. 26 of 1958 Rules, R. 79-A of the WBSR could be resorted to, in the facts and circumstances of the case before us, we are unable to hold that the impugned order of appointment as Principal was or could be validly made under R. 79-A.

32. Anticipating such difficulties, R. 3-A of WBSR was invoked on behalf of the State, and it was contended that the appointment of Principal was made in relaxation of the provisions contained in R. 79-A. Rule 3-A provides as follows:

“3A—Nothing in these rules shall be construed to limit or abridge the power of the Governor to dispense with or relax the requirement of any of these rules to such extent and subject to such conditions as he may consider necessary for dealing with a case in a just and equitable manner.”

33. We are unable to accept this contention. No such case has been made out in the affidavit-in-opposition. No such case can also be made out from the records of this case produced. Whether in the facts of a particular case the Government has or had the power or in fact exercised the power of relaxation under R. 3-A or not, is a question of fact. Excepting a submission made from the bar, there is nothing before us to show that the impugned order was passed in exercise of power under R. 3-A and/or in relaxation of R. 79-A or that such order was passed in order to deal with this case in a just and equitable manner as contemplated by R. 3-A.

34. Accordingly, we must hold that the appointment of Dr. Halder as Principal cannot be upheld under R. 79-A of WBSR, even if the said Rule can be held to be applicable.

35. The further appointment of Dr. Halder as Professor and Head of the said department was for the purpose of his appointment as Principal, and not a separate and independent appointment. Accordingly if his appointment as Principal cannot be upheld the other two appointments cannot also be supported. It is further to be remembered that it was the post of the Principal which was vacant and the appointment was principally for that post. The order in question is a single composite order and the Court cannot sever the same and substitute its own order in place of the Government order in the facts and circumstances of this case.

36. We shall now deal with the Government order dated 30th of April 1968 (p: 226 of Manual), the relevant provisions of which are set out here-in below:

Para 2—“Re-employment after superannuation of Medical Officer posted within Calcutta and Howrah Corporation areas will not be normally encouraged and may be given in exceptional circumstances for a period of six months only after consultation with the Finance Department and prior approval of the Governor through the Chief Secretary:”

37. In-our opinion the above paragraph makes it clear that normally such re-employment should not be done but it can be done only in exceptional circumstances. Even in such a case the procedure laid down there must be followed. There is no material before us to show that any such power had been exercised in the present case. There is no material before us to show that it was not a normal case or that there was any exceptional circumstance. The affidavit affirmed on behalf of the State dot not ??? not disclose any material to support such a case. The records produce before us also do no bring this case within the purview of this paragraph. As a matter of fact neither the affidavits nor the records make any reference to this Government order; on the other hand, it is to be pointed out that Dr. S.B Bose who was at the relevant time acting as principal, was due to retire on 30th Nov. 1976 and it must have been known to all concerned. As a matter of fact even after his resignation about a month passed before any order was passed. Further this paragraph provides for prior approval of the Governor through the Chief Secretary. No such approval has been brought to our notice. The Cabinet decision referred to in the reconstructed records does not, in our opinion, amount to such approval in respect of such an order. In our opinion, para 2 of the 1968 order has no application in the instant case and cannot be invoked in support of the order.

38. After the hearing of the matter was concluded and the judgment has been reserved by us, this matter was again mentioned before us on the 9th June, 1977 by Mr. Roy on behalf of Dr. Halder in the presence of the learned lawyer for the petitioner. It was submitted that the reference to Governor and Chief Secretary in 1968 Government order was not applicable now, inasmuch as it was made at the time of the President's Rule in this State. According to Mr. Roy at the present moment it would be after consultation with Finance Department and prior approval of the cabinet: In this context reference was made to the sub-paragraph of para 2 of the Government order dated 21st December, 1967: The relevant provisions of the said 1967 Government order 21st December 1967 order (page 225 of the Manual) provides as follows:

“2. In cases of Medical Officers posted out side Calcutta and Howrah Corporation areas re-employment may be given for further period beyond the age of 60 years on six monthly basis up to the age of 65 years, whereas, in special cases of Medical Officers posted within the said areas, re employment may be given for a period of six months beyond the superannuation age of 58.

In either category of cases such re-employment made given after consultation with Finance Department and prior approval of the Cabinet giving due regard to the following criteria.

(i) No suitable substitute is readily available to replace the Medical Officers concerned.

(ii) Such re-employment of the officers concerned will not block the promotion of eligible officers.

(iii) No practising Medical Officer should be re-employ against a non-practising post as laid down in Government order No. Estt/5363/85-81/67, dated the 5th September, 1967.

3. The Medical Officers to be re-employed whether under paragraph 1 or under paragraph 2 above should be physically and mentally fit and their service records should be satisfactory.

During the period of re employment the Medical Officers will draw as usual the pay and allowances last drawn by them on the dates preceding their respective dates of attaining the age of 58 years, less pension equivalent of retiring gratuity, the pension, if any, being held in abeyance.

4. The proposal for re-employment in Individual cases in terms of the above decision should be submitted by the Directorate of Health Services in good time i.e at least three months before an officer attains the age of 58 years or before the expiry of the present tenure of re-employment as the case may be to the Department of Health together with a certificate of physical and mental fitness, the service book or service statement and the C.C Reports of the officer concerned.

39. We are unable to entertain this contention of Mr. Roy. This contention requires an investigation into various questions including the question as to whether 1968 order was in force at the relevant time or whether the 1967 order revived so far as the Medical Officers posted within Calcutta and Howarth Corporation areas are concerned. No record or order was produced to show that there was any amendment of 1968 Order in the manner suggested. In my event there are difficulties in applying in the 1967 order even assuming that such order was attracted. Further there is no material before us to show that there was any special case. Moreover it only refers to re-employment for a period of six months beyond the superannuation age of 58 in respect of such medical officers. In the present case the age of superannuation is 60 years and not 58 years. There is no material before us to show that the appointment was made under the 1967 Government order or that the criteria or conditions laid down in this Order were taken into consideration or were satisfied in the present case. It may also be pointed out that no such submission was made on behalf of the State which has passed the impugned order, until this morning.

40. Therefore the position is this that neither Rule 79-A of WBSR nor 1967 or 1968 Government Order can be resorted to uphold the validity of the impugned order.

41. Regarding the question of the inherent power of the Government, the admitted position is that such inherent power cannot be exercised in breach of any statutory provision. Admittedly, the Government has the inherent power, just like any other employer, to create or abolish any post. N. Ramabha Pillai v. State of Kerala, (1973) 2 SCC 650 : AIR 1973 SC 2641. It may also be the inherent rig it of the Government to appoint or not to appoint any one in a past. But this muse be subject to other constitutional or statutory provisions which may be applicable. The act of making such appointment may be in exercise of the executive power or the inherent power but in making such appointment the Government cannot ignore or act contrary to or in violation of any Constitutional or statutory provision. There is no scope for exercise of any inherent or executive power, if there be proper provisions covering the sphere in which such inherent power is sought to be exercised and in any event no such inherent or executive power can be exercised in violation of such provisions. The entire sphere of retention, re-employment and appointment after the attainment of the age of superannuation is fully cohered by appropriate rules. There can, therefore, be no occasion of exercise of any executive or inherent power. Such power sought to be exercised is clearly in violation of the appropriate provisions.

42. Our finding may be summarised as follows:

(1) The impugned order of appointment in favour of Dr. Halder cannot be supported by R. 31 of 1967 Rules.

(2) Appointment of Dr. Halder as Principal cannot be supported by Rule 79-A of WBSR, even if we assume that R. 79-A of WBSR may be invoked in such a case.

(3) Rule 3-A of WBSR cannot be invoiced in support of such order in the facts and circumstances of this case.

(4) The impugned order is not severable. Appointment as Professor and Head of the Department cannot also be upheld.

(5) Having regard to above, it is not necessary to decide whether R. 79-A of WBSR maybe invoked in such a case or not.

(6) No case has been made out before us to bring this case within 1967 or 1968 Government order.

(7) Inherent or executive power to make such an order cannot be invoked in the facts and circumstances of this case because of the existence of the relevant Rules, covering the entire field.

43. For the aforesaid reasons we must hold that the impugned order of appointment is invalid and illegal. Accordingly we allow this application and make the Rule absolute. All interim orders are vacated. There will be no order as to costs. Before we conclude we have to observe that in this case we found it rather difficult to appreciate the stand taken by the Government it seems that the Government itself was not in a position to assert definitely and clearly the source of its authority to pass such order. From time to time different provisions were relied on in support of the order. Atone stage reference was made to 1955 Regulations. This reference is obviously mi conceived because this does not confer any power of appointment. It merely refers to the necessity of consultation with Public Service Commission in a particular case having regard to Art. 320(3) of the Constitution. At a later stage reliance was placed on R. 18 of 1958 Rules. Apart from that no case was made out in the affidavits affirmed on behalf of the respondents. Reliance was placed during the course of arguments on certain Rules and/or Orders in support of the validity of the impugned order. Just before delivery of judgment reliance was placed on some other Government Order. However the respondents could not place sufficient material before the Court to show that any such Rule or order was applicable in the facts of this case. The affidavit was not very helpful. We cannot help forming an unfavourable (sic.) that sufficiently serious attention was not given to the matter. This becomes more regrettable when we come to the question of the records of the Government. Excepting some copies of some notings in connection with one cabinet decision, which were described as re-constructed records” no other record could be produced before us. It was submitted on behalf of the State that original files were missing. We have to observe with regret that it discloses an undesirable state of affairs it is unfortunate that the Government files are so careless kept that when they are required by (sic) in connection with a case before (sic) the same are found to be “missing”.

A.N Sen, J.:— I agree.

44. Application allowed.